CAS' Essendon verdict damns players for 'lack of curiosity'

Melissa Coulter Ryan

The Court of Arbitration for Sport's verdict on the Essendon 34 has damned the players for a lack of curiosity about the injections they were given, and their "group decision" to keep the controversial 2012 regime a secret.

In outlining its reasoning for the sanctions against the players, the CAS panel noted that all players had received anti-doping education, none of the players had used the World Anti-Doping Agency hotline (or any other hotline) or searched the internet for information on "thymosin", and no player had asked or spoken to club doctor Bruce Reid about the injections.

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As the fallout from the players' suspensions ripples throughout the AFL and Australian sport, such inaction, said the finding, meant "the players' lack of curiosity is fatal to the success of this particular plea".

The CAS verdict also condemned the players' "reliance upon senior persons with the club who were not even medically qualified ... The explanation falls short of an excuse".

However, it said the case of the Essendon 34 was not the one to examine whether "the team environment" could justify a failure to take anti-doping steps that athletes in an individual sport must take.

Evidence from the CAS award detailed the level of secrecy at Essendon, including from the players, about the injection program, and the complete lack of disclosure on doping control forms not only about the injections but about other supplements supplied by disgraced sports scientist Stephen Dank.

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There was, the finding said, "a group decision by the players on the direction of Mr Dank and [former high performance manager] Mr [Dean] Robinson to keep secret the nature of his new regime", in which players received injections weekly or every couple of weeks from January-September 2012.

The panel rejected as "not at all convincing" an attempt by some players to equate discussing or revealing the supplements program as similar to disclosing team tactics.

"In a desire, not unique to these players, to gain every competitive advantage available, they were insufficiently careful as to the nature of the regime to which they were subjected," the finding said.

But also quoted were statements from Bombers given to the Australian Sports Anti-Doping Agency. Player Luke Davis told ASADA: "They wanted to be confidential within the playing group, because they didn't want teams ... to find out." He added: "I remember them saying that only a couple of the coaches were aware of what the supplement program was going to be".

Other players disputed they had been instructed to keep it quiet.

ON THE EDGE

The panel referred to the February 12, 2012, meeting at the club, run by Dank, Robinson and then coach James Hird about the supplements program, at which the players signed consent forms to the injection of four substances, including thymosin and AOD-9604. The injections for thymosin matched a regimen for thymosin beta-4 outlined in an email between Dank and Shane Charter.

Dyson recalled that Robinson or Dank had said at that meeting that it was like "being on a cliff and going right to the end but not going over it".

In rejecting a no significant fault or negligence plea for sanction mitigation for the players, the panel considered "the players must have appreciated that the regime to which they were being asked to submit was, if not over the edge, at any rate near to it and being invited to go near the edge and, in the event, went over it ... there would be no reason to cast a veil of secrecy over something that was known positively to be lawful and innocent".

While the players had argued that the use of thymosin beta-4 could not be established in any particular player, the panel found the construction of Dank's regime was "not designed or marketed for any particular player; it was designed and marketed for the whole team and thymosin was touted as the jewel in the crown of the regime".

At least six players recalled Dank telling them they were being injected with thymosin and two players saw vials labelled thymosin in Dank's fridge.

Dank "may have been a rogue but there is no evidence that he was a fool", the finding said, and thymosin, which helps heal damaged tissue and speed recovery, "was the most potent element in his regime".

Stephen Dank.

Dank kept tabs on the players, as a number of text message exchanges showed.

April 20, 2012: Jake Melksham to Dank: "Do I need to have a drip? Haven't had one this week." Dank replied: "No. Did I inject you this week?" Melksham: "Two thymols."

April 20, 2012: Dank to Sam Lonergan: "Have I given you anything this week?" Lonergan: "Had recovery jab two days ago."

July 19, 2012: Dank to Kyle Hardingham: "You forgot your Thymosin." Hardingham: "Na, I came in an [sic] got one with Dyso." Dank: "Sorry, mate. I hadn't marked you off. My mistake."

July 4, 2012: Dank tells Watson he has forgotten his shot. Watson: "We'll do it tomorrow." Watson testified he did not have it. The panel found his explanation that it was easier just to say "yeah, OK" rather than tell Dank he did not want any more injections was "not wholly convincing" but showed that Dank was ensuring the program still ran, and that Watson was still getting injections.

ON THE OUTER

While there was an "ill-founded assumption about the club doctor's knowledge of the Dank program" by the players, it was an inadequate defence as none of the players had actually sought to substantiate whether Reid knew about it or approved of it.

One illustration of this level of secrecy was in the testimony of one player before the panel, who was also treated by Reid as his personal doctor for cardiac arrhythmia.

Reid referred the player to another doctor, who said in a letter to Brett Murphy of the AFL Players Association on July 23, 2013: "After discussing the matter with [player], while I don't recall discussing any supplements with him he reminded me that he was advised to take some vitamin supplements and I believe I phoned Dr Bruce Reid to check whether the vitamin supplements would react with the Flecainide that I had prescribed for [player] for his cardiac arrhythmia."

The panel found this example of "the reticence of the players to disclose it, not only to persons outside the club, but to the club doctor himself" as "particularly illuminating", including the description of it as "some vitamin supplements".

Essendon doctor Bruce Reid. Photo: Pat Scala

DOPING CONTROLS

Not a single Essendon player tested during the 2012 season revealed that they were being given thymosin injections, which the panel took a particularly dim view of.

"Complete failure of the vast majority of players who had to fill in a doping control form during the season to reveal the receipt of injections does not encourage confidence in their statements as to the limited or sporadic nature of what they were injected with."

On that, Hille said: "You list the things that you feel you need to list ... It was just something I didn't think to list".

Dell'Olio believed that he only had to list supplements taken within the last three or four days - the injections took place at the start of the week, to enhance recovery from the weekend's game - while Dyson thought it was one to two days.

It also came to light that Dank had a role in pre-game preparation on match-day for Essendon, with players given supplements pre-match from a "pill box provided by Mr Dank [that] was part of the program", which players did not reveal on their doping forms. Dell'Olio testified that prior to every game he played, he was given pills by Dank and did not disclose that on doping forms.

"It is indicative of the casual approach (at its best) to the secretive (at its worst) approach of his duty of disclosure," the panel said of Dell'Olio's evidence.

Cory Dell'Olio. Photo: Sebastian Costanzo

HUMAN EXPERIMENTATION

The panel noted that the lack of records by the club and by the players. While McVeigh was told that he was being given melatonin - but admitted to no tanning side-effects, for which it is well-known - it was apparent to the panel that the ignorance of the players in what they were being injected with was overwhelming.

"The players after the signature of their consent form did not know with what they were being injected and would never have been able to say what it was, other than from what they were told by Mr Dank, who, once he had their consent, had no particular interest in giving them an accurate account"," the decision said.

On August 5, 2012, Dank had texted Nima Alavi, a compounding chemist at the Como Compounding Pharmacy, for help because of the large number of soft-tissue injuries occurring at the Bombers, a conversation which covered a compound used in the US for horse racing for repairing damaged cells which, they noted in the chat, had had virtually no experimentation in humans.

Alavi: "It's amazing and being used in the USA for elite horse racing ... [sic] I can even put the thymosin and AOD in it".